Unfortunately for Ms. Helmsley and Trouble, disgruntled relatives and a cooperative judge managed to undo the trust agreement by reducing it to $2-million and awarding $6-million to each of the two disinherited grandsons - all on the basis that their grandmother was not of sound mind when she concocted her will and trust agreements.
As of September 2009, the case regarding the bulk of Ms. Helmsley's estate remained unsettled, with the courts deciding that the trustees were free to give the money to whichever charitable causes they saw fit, rather than primarily to organizations that cared for dogs. Three leading charities said they would try to have this aspect of the court ruling overturned. The case goes on.
So despite some bumps along the way, Ms. Helmsley did manage to ensure the ongoing care of her canine companion. Had there been no trust provision, Trouble would likely have been in real trouble, considering no one really wanted her.
A Canadian lawyer is required to make sound observation of a will-maker and confirm capacity as a professional observer. If that capacity may become an issue, steps are require to be taken to ensure to the degree possible that the will maker's will and wishes are both respected and protected. This would include creating a body of proof that the will maker was capable at the time the instructions were given to the lawyer and at the time of signing the will and related planning documents. This is the most that anyone can do to protect their plan and wishes. However the court takes on a role of balancing the interest between the will maker and beneficiaries (including those people to whom the will maker has an obligation of support or other legal obligations) and will was done as did the judge in Leona Helmsley's case.
A concept Canadian legislatures may wish to consider is "ante-mortem" probate where a will is validated while the person is still alive which then prevents it from being contested after the person dies. This technique started to gain hold in the United States several decades ago when Arkansas, North Dakota, and Ohio authorized the technique. Ante-mortem probate may be regaining interest in the States as Alaska has just passed legislation authorizing this technique.
Question: What are some cases in Canada that have set precedent or been a model (good or bad) for leaving your estate to your pets?
Barry Seltzer: There are cases dealing with a multitude of aspects of estate planning and pets.
Some pet owners have included clauses in their wills directing that their pets be destroyed upon their death. Their motivations vary. Some feel their pet would be so distraught without them that it would be kinder to end its life. Others think that no one would adopt their pet and that it would end up in a shelter and be euthanized anyway. Others worry that their pet might be adopted by someone who would treat it badly - or that it could land in some scientific research program. A bit more background may put this case in perspective.
One scenario that has come up relates to a will maker's desire to have his or her pets follow them to the grave. A case in point was that of Clive Wishart, who directed that his four horses, Barney, Bill, Jack and King, be shot and buried after his death:
"I direct and declare that my Executors have my horses shot by the Royal Canadian Mounted Police and then buried."
This matter came to the attention of the courts because the R.C.M.P. notified the executors that they would not follow Mr. Wishart's directions without a court order requiring them to do so. Mr. Wishart's executors, whose responsibility it was to carry out the directions in the will, were also unhappy with the provision. After all, the horses were in good health and less than four years of age. The court became involved and was aware of the strong public protest to this provision. This case became the subject of debate in both Canada and the United States. Petitions were signed and letters were written to the court. One letter was written by an elementary school child and stated:
Please don't let anyone kill those horses. I love horses but my dad won't let me have one. I will be sad if they get killed.
In spite of the uproar, the court resolved that its decision would not be based on sentiment but on legal principles. Fortunately for the horses, the court employed extrinsic evidence that brought it to void the euthanasia provision of the will. The court determined that Mr. Wishart treated these horses as pets and did not want them to fall into the hands of anyone who might abuse them. The court held that "The evidence is clear that he had a great love for his horses and he was undoubtedly unaware that others would be prepared to provide and care for them and not abuse them." Therefore, the court held:
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